HERNANDEZ DELGADILLO v. BARR (2020)

United States Court of Appeals, Ninth Circuit.

Kevin Alberto HERNANDEZ-DELGADILLO, aka Kevin Hernandez, aka Kevin Alberto Hernandez, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 16-72677

Decided: October 29, 2020

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges. Sarah Vanessa Perez, Law Offices of Sarah V. Perez, Montebello, CA, for Petitioner Gerald M. Alexander, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

MEMORANDUM **

Kevin Alberto Hernandez-Delgadillo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge's (“IJ”) decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency's factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.

Substantial evidence supports the agency's determination that Hernandez-Delgadillo failed to establish he was or would be persecuted on account of a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group”); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant's “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Hernandez-Delgadillo's withholding of removal claim fails.

Substantial evidence also supports the agency's denial of CAT relief because Hernandez-Delgadillo failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We do not address Hernandez-Delgadillo's contentions as to the IJ's adverse credibility determination because the BIA did not reach that issue. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA).

As stated in the court's October 4, 2016 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.